MODULE 17 (continued)

As is already clear, issues of culture, cultural
values and cultural rights are highly complex
and difficult. Activists working in the human
rights arena have encountered a number of problematic
issues associated with cultural rights. These
include:

"Cultural specificity

The issue of "cultural specificity,
which has been extremely contentious in many
po­litical and other forums, grows out of a
seeming contradiction among various provisions
in international human rights law. One set
of provisions guarantees to each group the right
to "enjoy its own culture.18 Another
guarantees the universality of human rights-the
principle that the human rights contained in
international instruments belong to each and
every individual on the basis of equality and
nondiscrimination. The potential con­flict
lies in the fact that certain practices in different
cultures contradict or seem to contradict provi­sions
in international law. If objection is made
to these practices on the basis that they vio­late
human rights, do these charges in turn not violate
the right of all peoples to enjoy their own
culture?

The debate is not made any easier by the fact
that cultural relativism is sometimes articulated
as a reason to abandon certain notions of basic
human rights, especially by authoritarian re­gimes
that seek to quell oppositional struggles in
nations and societies. At the same time, it
is true that certain "universalizing
notions of liberal humanism have privileged
existing power structures and have systematically
excluded marginalized voices and identities
to the point where there is a direct impingement
on the human rights of these groups and people.
The debate on this very important and sensitive
issue continues.

The rights of indigenous peoples

A further problematic (and related) issue arises
from the fact that the UDHR and associated treaties
and documents are part of a system of interna­tional
law among states that has histori­cally refused
to recognize the status of indigenous peoples
as subjects with sovereign status or rights.
(See Module 6 for more discussion of the rights
of indigenous peoples.)

By deeming indigenous peoples incapable of
enjoying sovereign status or rights in international
law, international law was thus able to govern
the patterns of coloni­za­tion and ultimately
to legitimate the colonial order, with diminished
or no conse­quences arising from the presence
of aboriginal peoples.19

Dams, Resettlement
and Tribal Peoples

According to Arundhati Roy, an Indian
writer, a huge percentage of the people
displaced by the construction of big dams
in India are tribal.

"Many of those who have been resettled
are people who have lived all their lives
deep in the forest with virtually no contact
with money and the modern world. Suddenly
they find themselves left with the option
of starving to death or walking several
kilometres to the nearest town, sitting
in the marketplace (both men and women),
offering themselves as wage labour, like
goods on sale.

"Instead of a forest from which
they gathered everything they needed-food,
fuel, fodder, rope, gum, tobacco, tooth
powder, medicinal herbs, housing material-they
earn between ten and twenty rupees a day
with which to feed and keep their families.
Instead of a river, they have a hand pump.
In their old villages, they had no money,
but they were insured. If the rains failed,
they had the forests to turn to. The river
to fish in. Their livestock was their
fixed deposit. Without all this, they're
a heartbeat away from destitution . .
.

"For the people who've been resettled,
everything has to be re-learned. Every
little thing, every big thing: from shitting
and pissing (where d'you do it when there's
no jungle to hide you?), to buying a bus
ticket, to learning a new language, to
understanding money. And worst of all,
learning to be supplicants. Learning to
take orders. Learning to have Masters.
Learning to answer only when you're addressed.

"In addition to all this, they have
to learn how to make written representations
(in triplicate) to the Grievance Redressal
Committee or the Sardar Sarovar Narmada
Nigam for any particular problems they
might have. Recently, 3,000 people came
to Delhi to protest their situation -
travelling overnight by train, living
on the blazing streets. The President
wouldn't meet them because he had an eye
infection. Maneka Gandhi, the Minister
for Social Justice and Empowerment, wouldn't
meet them but asked for a written representation
(Dear Maneka, Please don't build the dam,
Love, The People). When the representation
was handed to her, she scolded the little
delegation for not having written it in
English." 20

The cultures of indigenous peoples typically
differ in significant ways from the liberal
West­ern perspective. The UN Special Rapporteur
on the Realization of ESC Rights has said that
if, for example, indigenous peoples rights

do not include full guarantees for the enjoyment
of their cultural rights, including the right
not to be assimilated and the right to cultural
autonomy, the protection offered to the indigenous
peoples for other rights can have no significance
at all.21

Forced Marriage and
Cultural Rights

"Rukhsana Naz, a 19-year-old, British-born
woman of Asian origin, died in Derby in
1998. Her brother ritualistically strangled
her with a ligature while her mother held
her down by her feet. In court, her mother
reportedly said 'it was her kismit (fate)'.
Her brother claimed provocation-a cultural
defence-arguing that the killing was committed
in the name of 'honour'.

"Rukhsana was murdered for 'shaming
her family' by refusing to stay in a marriage
to the man who had been chosen for her.
She had decided to return to the man she
loved and by whom she was pregnant at
the time of her death. Under the pretext
of reconciliation, her family lured Rukhsana
home in order to execute her . . .

"Her case may be at the extreme
end of the spectrum, but many other Asian
women in the UK face cruel treatment for
refusing to conform to family expectations.
Forced marriage is not confined to Muslim
women, but cuts across faith, age, class,
caste and racial group . . .

"In August 1998, the UK government
established a Home Office Working Group
on forced marriage. It was an unprecedented
move since the state has always tended
to allow minority communities to police
themselves. The politics of multi-culturalism
does not allow for outside intervention:
interference is considered intolerant,
even racist. Although Asian women's groups
have raised the issue of forced marriage
for years, the government only responded
after the scandal of the Rukhsana Naz
case and of another high-profile case
. . .

" . . . [T]he Home Office minister
responsible for the working group . .
. and the government have declared that
community leaders must resolve the problem
themselves. The fact that they are mostly
male, conservative, orthodox or even fundamentalist
(and not in Islam alone) seems to have
escaped the government. Women are invisible
and silenced . . .

" . . . Will the Working Group deliver?
Success depends on whose voices are considered
legitimate: those of community leaders,
or of women? Who and what will the state
censor? Will it pursue a policy of appeasement
of men and community leaders for the sake
of 'good community and race relations',
or listen to the voices of minority women
and take on board their demands. If it
listens to women, it will challenge the
community leaders, male power, as well
as racism and the multi-cultural policies,
which currently deny women their rights
to the state's protection."
22

Womens rights and culture

Womens self-identity is closely connected
with the culture within which they live. At
the same time, unfortunately, a range of cultural
practices in so­cieties around the world violate
the dignity and integrity of women. For example,
school dropout rates are highest among girl
children in parts of Asia, Africa and the Arab
world. In these cases their right to educa­tion
is often hampered by cultural traditions and
certain values of marriage and family, which
in turn affect their individual civil rights.
The right to food, especially for women and
girl children, is also frequently transgressed
by cultural practices in different countries.
In certain communities in India, for example,
when it comes to food distribution in the family,
particu­larly in situations of dire poverty,
women and girl children are given the least
and suffer most from hunger and deprivation.
This is again due to traditional perceptions
that ascribe less value to womens lives
and their rights.

The Neem Tree, Culture
and Globalization

For hundreds of years, farmers in India
have used a pesticide extracted from the
seeds of the neem tree. Because the technology
for extracting the emulsions is simple,
farmers making the pesticide typically
do not store it, but instead use it right
away. Despite the simplicity of the process,
the pesticide has proven to be very effective,
warding off approximately 200 different
insects. There has also been considerable
research done by Indian scientists during
the past century on the use of neem as
a pesticide. However, the technology and
pesticide derived from neem was never
patented in India, because many Indians
oppose the patenting of life forms and
agricultural products, and Indian law
prohibits the patenting of agricultural
and medicinal products. Feelings on this
matter are particularly strong in regard
to the neem tree, because the tree has
played an important role in Indian culture
and religion.

In the past decade the multinational
chemical corporation, W. R. Grace Company,
has secured a patent on the production
of pesticide from the neem tree from the
US Patent and Trademark office. With the
acceptance of the GATT agreement by the
Indian government, all Indian manufacturers
are forced to adhere to international
patent laws. This will require that Indians
stop using their own technology to make
the neem-based pesticide or pay royalties
to W. R. Grace. The patent has sparked
an outcry among Indian farmers, scientists
and political activists, who object to
patent rights being granted on a product
that is the accumulation of centuries'
worth of Indian knowledge and effort.
There is also concern that the patent
will deprive local farmers of their ability
to produce and use neem-based pesticides
by altering the price and availability
of the need seeds themselves. A number
of Indian organizations, as well as organizations
from other countries, have mounted a legal
challenge to the granting of the patent
by the US Patent and Trademark office.
23

Because human rights guarantee equality and
nondiscrimination, as well as respect for physi­cal
and psychological integrity, many women take
human rights as a basis on which they work to
improve the conditions within which they live.
This reliance, while effective in many ways,
has put them in conflict in many cases with
their own cultures. This dilemma has been discussed
in some detail in Module 4.

Scientific progress and culture

Article 15(1)(b) of the ICESCR recognizes the
right of everyone "[t]o enjoy the benefits
of scientific progress and its applications.
While this guarantee sounds relatively straightfor­ward,
it is, in reality, fraught with complexities.
Once again, the relationship of power to culture
comes into play. Access to technology and the
products of scientific prog­ress may be constrained
for large numbers of people, because they cannot
afford to buy them. In addi­tion, economic
power can monopolize the products of scientific
progress in a way that is detrimental to the
cultural and other rights of people around the
world.

While almost no one doubts the benefits that
can accrue to the quality of life from scientific
progress, problems that should be of concern
to cultural rights activists arise from the
fact that the concept of "scientific progress
is grounded in the Western liberal tradition.
The be­lief in "scientific progress
has been termed an ideology, and as with all
ideologies, it can serve as a blinder to experiences
and perspectives that might be in conflict with
it. Since dif­ferent cultures embody different
perspectives, such a blinder potentially threatens
to shut out other cultural experiences and beliefs.
The safeguarding of the cultural rights of people
without depriving them of the fruits of technological
advance and scientific progress implies that
new paradigms of social transformation have
to be evolved where without any sacrifice of
their cultural moorings and creative potential,
populations and communities can achieve sustainable
development.

Some thoughts on cultural freedom

"At this point, the true nature
of technological and industrial advancement
has to be set in a proper perspective
of rights and obligations. For, in the
name of civil and political rights and
liberties . . . Capitalism has made its
way on to the pinnacles of status and
power. Yet in the course of its development,
the economic and social rights of the
majority of the people have been trampled
upon, thereby jeopardizing the civil and
political rights themselves. Here comes
a powerful economic and technological
force working itself toward domination
and inequality. It was first set to work
against its own rural people and labour,
and then went on to overseas expansionism,
thus making itself prosperous as well
as politically powerful and domineering.
All this has been perceived, incidentally,
for both Capitalism and Marxism alike,
as part of historical necessity and inevitability,
at least insofar as the Industrial Revolution
is concerned. At any rate, it is the empirical
basis upon which the classical theory
of economic growth has been established.
The same can obviously be said of modern
science and technology as generally conceived
of and practised up to the present time.

"Of even more importance still to
the conception of human rights . . . is
the people's potential and prospect of
self-development that has been suppressed
and disrupted under the hegemonic and
exploitative regimes. The current capitalistic
system and, for that matter, modern science
and technology, not only breeds flagrant
inequality within and among nations. It
also sees the meaning of progress as a
unilinear historical movement: that is
to say, as proceeding by stages as to
be capitalistically and technologically
determined. This is not merely a matter
of the right to development conceived
of in individualistic terms. But it is
virtually the far more fundamental question
of cultural values and dynamism, through
which science and technology can be made
to truly contribute to human and social
progress along with technological advancement
. . . In contrast with the hegemonic and
imposed industrial civilization currently
being perceived as uniform and universal,
this line of approach is to give full
recognition to the diversity of cultures
and values . . . It is mainly through
respect for cultural pluralism and dynamism
that the principle of equality and freedom
can be secured and promoted along with
economic and technological growth and
development.

"This point of understanding is
most pertinent to today's developing nations
as late-comers in the field of modern
science and technology, but with no tradition
of civil and political liberties behind
them. Within advanced industrial countries,
hegemonic and exploitative relationships
have been qualified and restrained somewhat
within a democratic framework of civil
and political participation. Most of the
Third World's developing countries, by
contrast, are under authoritarian regimes
and traditions, and practically all the
public decisions are left to the tiny
groups of so-called modernizing elites
. . .

"Notwithstanding all the nationalistic
claims, however, the fact remains that
these national elites' aspirations and
goals are closely associated with and
strongly inclined toward the Western master
culture . . . Here, the cultural impact
and influence of Western-styled education
and professional training has to be noted
. . .

"Now it is through such a socio-cultural
process and conditioning that modernization
and the required modern scientific technology
serve as the transmitter of hegemonic
social relations, within and among nations
. . . And all of this is in the name of
growth, with all the hope that the material
benefits thus accrued will somehow trickle
down to the common and underprivileged
sectors of population at the grassroots.
Meanwhile for at least three decades now,
out of this unbalanced growth strategy,
its 'innate tendency to extreme and ever
growing inequality' has increasingly expressed
itself in the extreme form of glaring
and growing poverty and unemployment as
well as chronic indebtedness among developing
nations . . .

" . . . If the Western historical
experience is to be of any guide at all,
the issues have to be traced further back
to the plight and predicaments of those
common lots in the rural sectors who were
forced to be dislocated and alienated
in the process of technological advancement
and industrialization. So also are the
plight and predicaments of the overwhelming
majority in the rural and traditional
sectors of today's developing countries.
For, on top of the adverse impact on economic
and social rights as well as civil and
political rights, their traditional cultures
and productive capability as a means of
self-expression and creativity are being
suppressed and disrupted. Not only deprived
of the benefits of modern scientific technology,
their own cultural potentialities for
self-development also come to a standstill
and eventually fall into disuse. Under
such structural constraints, modern science
and technology per se can be no substitute
for the common people's cultural deprivation
. . .

"All that has been observed of the
structural nature of modern science and
technology by no means suggests an anti-Western
or opposing anything to do with modern
scientific knowledge and its application.
Neither does it imply a need or desirability
to fall back on the traditional past away
from what has been going on in the contemporary
world. That in itself would be tantamount
to compromising one's own cultural and
creative potential to contribute to progress
which is prerequisite to the quality of
life with even more freedom and creativity.
" . . . The real issue and possible
solution confronting the developing countries
ought therefore to be a more positive
and constructive one. The prospect certainly
does not lie in either escapism or aversion
to scientific knowledge and technology
as such. It is fundamentally the question
of how non-colonial science and creativity
can be promoted and developed, in order
that real human and social progress could
be promoted. This only means that ways
and means have to be found for modern
scientific technology to be made use of,
not for dominating, but as a liberating
tool and thus transforming the whole productive
forces into a balanced and self-sustained
process of growth and development . .
.

"Fundamentally, then, the question
of self-reliance in science and technology
is concerned with that of cultural freedom
and creativity that has been lost in the
process of forced industrialization. Ironically
enough, both Capitalism and Communism,
though ideologically poles apart, pose
quite a comparable problematique here.
In fact, by the very same logic of technological
domination, the two as agents of industrialism
under the Second Wave civilization are
not much different . . . Each could admittedly
be said to represent the consequences
of its respective historical factors and
conditions. The point is that neither
of them is to provide the answer to the
question of cultural freedom, if carried
to the extreme as has so far been the
case.

"From the foregoing and insofar
as developing countries are concerned,
it comes down to one most fundamental
question as to if and how self-reliance
is to be recognized as a right associated
with cultural freedom and capacity to
grow as well as develop oneself. Again,
implicit in this is equal respect for
cultural pluralism and dynamism. This
is far beyond the conventional libertarian
or egalitarian approach to the problem
of human and social relations. It is of
course of little use to get stuck in the
historical past. But developmental efforts
toward self-reliance also involve restoring
and regenerating endogenous creativity
that has been lost under the impact of
industrial scientific culture.

"This adds a cultural and thus collective
dimension to the problem of technological
self-reliance. This is, again, beyond
the mere question of individual's right
to 'enjoy the benefits of scientific progress
and its applications' (article 15(b) ICESCR).
It is basically concerned with the problematique
of cultural identities of the whole rural
and traditional communities that have
been undergoing adverse social change
and transformation. This is by no means
in defense of traditionalism. But neither
is there any valid reason to allow the
current trend of hegemonic industrial
culture to go on oppressing people for
its own sake . . . The real and most obvious
alternative is to let endogenous sources
of knowledge and creativity be revitalized
and developed as the basis upon which
modern scientific technology could be
effectively adapted and assimilated.

"For all its feasibility, technological
self-reliance and cultural freedom is
in the final analysis a question of political
relationships, both within and among nations.
Like all the other human rights problematiques,
it requires a structural change and transformation.
In this very sense, it is likely to remain
an open question for quite some time to
come; that is, in the absence of, in Fouad
Ajami's words, 'the politics of love and
compassion' as against the current one
of 'realism' (Ajami 1978:2-4) where the
sole objective of power is to rule."
24

Challenges Facing Activists

Because of the complexity of cultural rights,
activists addressing these issues need to be
very thoughtful in their analyses and in developing
their strategies.

Analyzing and ensuring that cultural rights
are recognised as an integral part of economic
and social rights implies that activists have
to keep the complex dimensions of this issue
in mind when working on the development of their
rights discourse. When defining the content
of cultural rights, it is critical to always
place the process within a particular sociopolitical
context, and examine them in terms of the specific
nature and developmental goals of a society.
This would obviously include a realistic appraisal
of existing power structures within that society,
and an awareness of the various ways in which
culture is transmitted and communicated within
a society. It should also include an understanding
of institutionalised forms of culture, where
it works positively and also where it fosters
discriminatory practices and is used as a weapon
of control. The inclusion of womens rights,
childrens rights, the rights of the elderly
and the rights of minority groups and indigenous
people in creating a framework of cultural rights
is vital to the creation of a more just and
equitable social situation. The recognition
of the centrality of the culture question in
the human rights discourse is essential to the
development of a pluralistic, less exclusive
and more humane world order.

Women's Rights and
Religious Fundamentalists

During the 1970s the women's movement
in India began to point out how women
are oppressed under different religious
laws, especially with regard to inheritance,
divorce and ownership of property. They
raised a demand for a uniform civil code.
In the decade of the 1980s, the same demand
was taken up by Hindu fundamentalist groups
in the society, who wanted a uniform civil
code with a view to denying the different
communities and religions in India their
distinct laws and customs. The women's
movement became concerned that a uniform
civil code would be used to "hinduize"
minorities rather than protect the rights
of women. They thus redefined their demand,
and asked for "gender just"
laws within each religion or community.
Since the Hindu fundamentalist party came
to power in the central government, the
women's movement has steered away from
the issue of a uniform civil code, and
has sought to reach the goal of promoting
women's equality in the family through
secular criminal and civil laws, particularly
related to rape and domestic violence.

Author: This module was written by Ann
Blyberg on the basis of significant contributions
by Ligia Bolívar, Enrique González and Nirmala
Lakshman.

21.Danilo Türk,Final Report
of the Special Rapporteur of the Sub-Commission
on Prevention of Discrimination and Protection
of Minorities, The Full Realization of
Economic, Social and Cultural rights,
UN ESCOR, Commission on Human Rights, Forty-eighth
Sess., Agenda Item 8, UN Doc. E/CN.4/Sub.2/1992/16
(1992), p. 198.

22.
Hannana Saddiqui, "The Ties that Bind,
in The New Slavery: Forced Marriage
(London: Index on Censorship 1/2000), 50-52.